Judge Slams Ken Paxton’s Attack On Media Matters’ Free Speech Rights

The First Amendment has won again, this time against another pretend “free speech absolutist” (Texas Attorney General Ken Paxton) in his attempt to punish someone for their free speech. Perhaps Ken Paxton will have to learn about the First Amendment in these remedial legal ethics education classes he’s required to take as part of closing out the criminal charges he was facing for years.

You may recall that after fake free speech absolutist Elon Musk got all pissy at Media Matters’ use of its own free speech rights to point out the fact that they were able to find ads on ExTwitter from giant companies appearing next to the accounts of literal neo-Nazis, a couple of pandering state Attorneys General decided they’d use the power of their states to punish Media Matters.

The whole thing is incredibly stupid, but just to set the stage, Musk started whining about how unfair it was that Media Matters found and wrote about the ads. Trump advisor Stephen Miller tweeted that he thought state AGs should investigate Media Matters for their article, and both Paxton and Missouri’s Andrew Bailey jumped up to do so.

Paxton sent a civil investigatory demand (CID) as a sort of fishing expedition, demanding Media Matters hand over a ton of internal documents. Media Matters responded by going to court, initially in Maryland, but then quickly moved to DC (after the judge in Maryland suggested that was the proper venue) and asked the court to protect it from this obviously ridiculous, retaliatory attack. The attack was clearly designed to create chilling effects to stop any sort of investigatory reporting on what was happening to ExTwitter.

On Friday, Judge Amit Mehta did a complete and total takedown of Paxton’s bullshit censorial attack on Media Matters’ speech. The whole thing is worth a read. Paxton argued that the DC court has no jurisdiction over his Texas-based investigation. This is a bit ironic, given that Paxton is at the same time claiming jurisdiction over Media Matters despite it being in DC, not Texas.

Turns out, Paxton screwed himself here (such a good lawyer, huh?) by hiring a process server to deliver the CID in DC, thereby making the jurisdiction question a lot easier:

First, the court finds that Defendant invoked the benefits and protections of the District’s laws when he “caused” service of the CID in the District of Columbia “through a professional process service.” Def.’s Opp’n, Decl. of Ass’t Att’y Gen. Levi Fuller, Ex. 1, ECF No. 26-1, ¶ 3 [hereinafter Fuller Decl.]. Courts have found that the hiring of a process server creates an agency relationship between the attorney and process server, and that relationship establishes the attorney’s presence in the jurisdiction to satisfy the “minimum contacts” requirement. See Schleit v. Warren, 693 F. Supp. 416, 419–20 (E.D. Va. 1988) (so holding under Virginia law); Balsly v. W. Michigan Debt Collections, Inc., No. 11-cv-642-DJN, 2012 WL 628490, at *5–7 (E.D. Va. Feb. 27, 2012) (same); Hamilton, Miller, Hudson & Fayne Travel Corp. v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981) (so holding under Michigan law). Courts also have held that a person who arranges for personal delivery of process in a State “purposely avail[s] themselves of the privilege of serving process in [the State].” Hori, 520 F. Supp. at 70. As one court has put it: “it [is] reasonable to conclude that a lawyer who knowingly serves abusive process in a jurisdiction . . . is ‘purposely avail[ing] himself of the privilege of conducting activities within the forum State.’” Schleit, 693 F. Supp. at 422–23 (quoting Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1472 (E.D. Va. 1983)). Defendant’s hiring of a process server in the District of Columbia to effect service on Media Matters therefore created the requisite jurisdictional contacts with the District. See Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (“Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.”) (citations omitted).

Maybe they can teach that in Paxton’s remedial classes as well.

The judge also notes the irony of Paxton claiming to be able to enforce Texas law in DC but then not to be subject to a DC court himself:

Defendant promised to “vigorously enforce” the Texas DTPA against Media Matters for “fraudulent acts” with no apparent connection to Texas. Branch Decl., Ex. B at 13. His issuance of the CID had the effect of chilling Plaintiffs’ expressive activities nationwide, which deprived D.C. residents access to Plaintiffs’ reporting. The national implications of Defendant’s actions were compounded by his calling upon other Attorneys General to investigate Media Matters. See id., Ex. C, at 17. Thus, like the New Jersey Attorney General in Grewal, Defendant “projected himself across state lines and asserted a pseudo-national executive authority” that makes exercising jurisdiction over him reasonable and does not offend principles of federalism.

Having shown that Paxton has done enough that the DC Court has jurisdiction over him, the court takes on Paxton’s claim that his CID presents no injury to Media Matters (try not to laugh). Judge Mehta points out how ridiculous this claim is by basically saying, “dude, do you even know how the First Amendment works?”

Where, as here, a plaintiff brings a claim of First Amendment retaliation, “the injury-infact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir. 2021), cert. denied, 142 S. Ct. 2737 (2022) (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)) (internal quotation marks omitted); see also Twitter, 56 F.4th at 1174 (citing Edgar, 2 F.4th at 310); Cooksey, 721 F.3d at 236 (finding justiciable injury where a state official informed plaintiff that she had “statutory authority” to seek an injunction against him if he did not edit his diet-advice website and plaintiff alleged “speech-chilling uncertainty about the legality of private conversations and correspondence”). The chill must be “objectively reasonable.” Edgar, 2 F.4th at 310 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

Through sworn affidavits, Plaintiffs have demonstrated the profound chilling impact that the CID has had on its news operations and journalistic mission. Media Matters’ Editor-in-Chief, Benjamin Dimiero, declares that the CID has “dramatically changed [his] team’s editorial processes[.]” Pls.’ Mot., Decl. of Benjamin Dimiero in Supp. of Pls.’ Mot., Ex. 4, ECF No. 4-4, ¶ 16 [hereinafter Dimiero Decl.]. Dimiero describes a “new culture of fear” amongst Media Matters staff about research and reporting. Id. For example, he avers that the editorial team and leadership now engage in “greater internal scrutiny and risk calculation” when approaching stories that they otherwise would have published after their normal vetting process, such as stories about media coverage of the Defendant’s anti-abortion actions in Texas. Id. Dimiero further states that other stories, such as one concerning content moderation decisions made by X, “may go unreported on entirely.” Id. “There is,” he says, “a general sense among our team and organization that we must tread very lightly[] and be careful not to cross lines that would jeopardize our work or our employees’ safety . . . because of concern that certain reporting could make us a target for further retaliation.”

According to Dimiero, since Defendant announced the investigation, “Media Matters’s editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation.” Id. ¶ 17. Absent the CID, Media Matters would have coordinated follow up research and reporting on Hananoki’s November 16 Article, as well as the one that appeared the next day. Id. ¶ 18. Media Matters, for instance, “received several tips from people who have seen advertisements for prominent brands placed alongside extremist content,” but has limited the scope of its reporting on the subject “for fear of additional retaliation.” Id. Furthermore, Media Matters otherwise would have published at least two additional articles on the topics of Hananoki’s reporting, but his team withheld them due to concerns of further legal action. Id. ¶ 19. Writers have expressed concerns that their investigations could serve as the basis for retaliatory legal action and that their work product might be subject to investigative demands. Id. ¶ 22; see also Padera Decl. ¶¶ 23–24 (same). Media Matters’ leadership and editorial team have since assumed a more significant role in publishing decisions, which “has significantly slowed down [their] editorial and publication process.” Dimiero Decl. ¶ 21. Media Matters has been taking these steps out of fear of retaliation, not out of legitimate concerns about fairness or accuracy

I can relate, having been sued for my accurate reporting myself. The mental toll that such a lawsuit has on your reporting is very real, even when (arguably especially when) you know that your reporting was 100% solid. It’s incredibly chilling that you can still end up in court, facing ruinous liability, even when you do everything right.

From there, Judge Mehta moves on to the likelihood of success for Media Matters. He notes he only needs to do so for the First Amendment issue, which are pretty obvious and very easy.

Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” Aref, 833 F.3d at 258. Defendant makes no contrary argument, Def.’s Opp’n at 23, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element, see Day v. D.C. Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”); see also Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”)

Still, the court explains why Plaintiffs prevail regardless. “[T]he threat of invoking legal sanctions” is sufficient to deter protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). So, too, is the “threat of administrative and judicial intrusion into newsgathering and editorial process” that arises from official process and its possible enforcement. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (internal quotation marks omitted). The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has “reason to believe” Plaintiffs violated the DTPA. Tex. Bus. & Com. Code § 17.47(a), (c). He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the CID. Id. § 17.62(c). These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.

There is more. “The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). The CID seeks such records. It demands “internal and external communications . . . regarding Elon Musk’s purchase of X,” X’s CEO “Linda Yaccarino,” and Hananoki’s November 16 Article, as well as external communications with “employees and representatives of X” and the various companies that were the subject of the November 16 Article for a three-week period. Branch Decl., Ex. A, at 11. The compelled disclosure of such “research materials poses a serious threat to the vitality of the newsgathering process.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID “provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 54 (D.D.C. 2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The court need not repeat that uncontested evidence here.

Also, Paxton apparently didn’t even try to defend non-censorial reasons for opening the investigation:

To establish causal link, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Defendant’s initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Branch Decl., Ex. B, at 13. Also, Defendant’s description of Media Matters as a “radical anti-free speech” and “radical left-wing organization” and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent….

Defendant has not responded to Plaintiffs’ causation evidence. See Def.’s Opp’n at 22–23. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link

It seems quite possible that Ken Paxton is a terrible lawyer.

Paxton also claimed that Media Matters’ voice wasn’t chilled because the org had continued to speak out in defense of its reporting. But, as the court notes, that’s not how any of this works. At all.

Defendant also contends that it is “factually untrue” that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and “doubled down” on the accuracy of the X images contained the November 16 Article. Def.’s Opp’n at 24; Fuller Decl., Exs. E & F, at 24–39. But this argument asks too much of Plaintiffs. They “need not show that the government action led them to stop speaking ‘altogether,’” only that it would be “likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Edgar, 2 F.4th at 310 (quoting Benham 635 F.3d at 135). Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.

End result: preliminary injunction barring Paxton from enforcing his CID.

Of course, now we’ll have to see what happens in Missouri, where AG Andrew Bailey (who also pretends to be a free speech warrior while trying to suppress the speech of others) not only sent a CID, but immediately sued Media Matters in Missouri. He claims that Media Matters’ decision to go to court to block Paxton’s CID meant that they would refuse to bow down to his demands as well. That, of course, puts that case in a local Missouri court. But one hopes that this ruling will help clarify the First Amendment issues for that court as well.

Still, chalk one up for actual free speech and the First Amendment: Ken Paxton has had his attempt to retaliate against Media Matters for its speech smacked down, as was richly deserved.